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Serious misconduct

Information about how serious conduct is defined under employment law.

If an employee is guilty of serious misconduct, their employer will be able to summarily dismiss that employee. This effectively means that the employer considers the employment contract has ended (or repudiated). If this happens none of the termination terms in the contract will apply (such as 'notice' periods).

What is serious misconduct?

Serious misconduct is defined in the regulations to include:

  • wilful or deliberate conduct by an employee that is not consistent with the continuation of the contract of employment
  • conduct that causes a serious and immanent risk to the health or safety of a person
  • conduct that damages the reputation, viability or profitability of an employer's business
  • conduct that an employee does in the course of their employment includes engaging in:
    • sexual harassment
    • theft
    • fraud
    • assault
    • refusing to do something reasonable that they were instructed to do
    • being seriously intoxicated (by alcohol or a drug) so that they are unfit to be trusted with the employee's duties or other duties that they may be asked to perform.

See r. 1.07—Fair Work Regulations 2009 (Cth)(opens in a new window)

Exceptions

Serious misconduct will not be found if the employee can show that, all circumstances considered, the conduct that they engaged in did not make the employment in the period of notice unreasonable.

Intoxication exceptions

Intoxication will not be counted if a drug was administered or taken according to the directions of a person who was lawfully authorised to administer or prescribe the drug. For example, this might be a doctor, nurse or a chemist.

The power to dismiss summarily is a common law power

The power to dismiss an employee summarily comes from the general common law of contract. At common law, a contract can be terminated where a fundamental breach has occurred or where the contract is apparently repudiated. Repudiation can happen where the behaviour of one party indicates that they are unwilling or unable to perform their obligations under the contract. This can happen because of an accumulation of minor breaches of the contract or with one significant breach.

How serious must the conduct be?

The degree of misconduct that would justify dismissal without notice is determined on a case-by-case basis. The facts of each case must be carefully examined. There is no rule that defines the degree of misconduct that would justify dismissal without notice.

See Rankin v Marine Power International Pty Ltd [2001] VSC 150 (21 May 2001).

In the North v TV case it was held that 'this conduct must be so serious that it 'goes to the heart of the employment contract. The conduct must be such that the employer is no longer bound by the employment contract.'

See North v Television Corporation Ltd (1976) 11 ALR 599

If serious misconduct is found

If serious misconduct is established it will be extremely unlikely that a dismissal was harsh, unjust or unreasonable.

See R v Industrial Court; ex parte Mt Gunson Mines Pty Ltd (1982) 30 SASR 504

If the employer discovers the serious breach after termination

Evidence of a serious breach can be used to justify the termination of employment, however if the employer knew about the conduct and ignored it, they may lose the right to terminate the contract for those breaches.

See McCasker v Darling Downs Cooperative Bacon Association Ltd (1988) 25 IR 107

Dismissal for accessing pornography

An employee was found to have been dismissed fairly, after employer's IT monitoring system found that he had been accessing pornography. The access happened after work hours, using his own internet service provider, but while using a computer that had been issued by his employer. The employer policy had clearly been breached. The employee claimed that the employer had breached his privacy.

Application by the employee was dismissed.

See Griffiths v Rose [2011] FCA 30 (31 January 2011)

More information

Legislation

Fair Work Regulations 2009 (Cth)

  • 1.07—meaning of serious misconduct

See Fair Work Regulations 2009 (Cth)(opens in a new window)

Cases

Not all of the cases mentioned are available online.

See:

Updated